Wednesday, September 23, 2009

The Next Steps After the Minnesota Vikings Drug Testing Case

In my latest FindLaw column, I analyze the recent 8th Circuit decision in Williams v. NFL. The court held that Section 301 of the federal Labor Management Relations Act does not preempt lawsuits under two Minnesota statutes relied upon by two Minnesota Vikings to challenge the NFL's disciplinary action against them for using a banned substance. (They took a supplement that they did not realize contained a banned diuretic, which can be used to mask evidence of performance-enhancing drugs.) I explain in the column why principles of federalism support the 8th Circuit ruling.

Here I want to ask what happens now. The same federalism-based reasons I offer in the column in support of the 8th Circuit's interpretation of Section 301 counsel against Congress taking action to preempt state law with respect to drug testing of professional athletes. Could the NFL and the NFL Players Association gut protections like those in the Minnesota statutes by agreement? Maybe.

As the 8th Circuit read the relevant Minnesota statutes, nothing in the collective bargaining agreement was relevant to the disposition of the claims, and therefore there was no preemption. At least with respect to Minnesota, that is likely to continue to be true even for a rewritten collective bargaining agreement after the current one expires in 2012. However, the parties could partly circumvent Minnesota law by specifying that state law claims such as those arising under Minnesota law are subject to the same arbitration process as other issues. Earlier this year, in 14 Penn Plaza, LLC v. Pyett, the Supreme Court held that unmistakably clear language in a collective bargaining agreement can waive individual employees' rights to a judicial forum for the litigation of federal statutory rights under the Age Discrimination in Employment Act (ADEA) and, by parallel logic, the same would be true for rights under other statutes, including state statutes.

In principle, such a new agreement would leave substantive rights under Minnesota law intact; players would have to make their arguments to the arbitrator rather than to the court. But in practice, this would be a great boon for the NFL, for under the collective bargaining agreement now in place, the NFL Commissioner can simply choose an arbitrator. In the Williams case he named the league's own general counsel, Jeff Pash. I have great respect for Pash. He was my mentor 20 years ago when I was a summer associate at Covington & Burling, where he was then a young partner. But even assuming completely good faith on his part, it is hard not to see the process as tilted in favor of the league. And for that very reason, it is likewise hard to see the NFLPA agreeing to submit these sorts of claims to labor arbitration--unless the union gets something substantial in return.